May 17, 2013

Washington, D.C. lawyer Kevyn Orr, 54, listens as Governor Rick Snyder addresses the media at the Cadillac Center in Detroit on Thursday March 14, 2013, while naming Orr as a candidate for the emergency financial manager for the city of Detroit. / Ryan Garza/Detroit Free Press

Detroit Free Press Lansing Bureau

LANSING — A top adviser to Gov. Rick Snyder set up one-on-one phone conferences for members of Michigan’s Emergency Loan Board to interview Kevyn Orr for the Detroit emergency manager job three days before the board interviewed him in public, an e-mail released by the state shows.

Union activist Robert Davis, who is suing to overturn Orr’s appointment, says the e-mail is a “smoking gun” that shows state officials violated the Open Meetings Act in recruiting and selecting Orr.

But a spokesman for the Treasury Department said Thursday that the one-one-one interviews proposed by Snyder adviser Rich Baird never took place.

“The appointment of Kevyn Orr ... was done in full compliance and spirit of the law,” said Caleb Buhs.

The Baird e-mail and a second e-mail sent by Treasurer Andy Dillon were turned over to Davis on Wednesday, one day after Ingham County Circuit Judge William Collette scheduled a June 5 hearing at which Snyder, Dillon and Orr were to show why they should not be found in contempt of court for failing to provide records to Davis.

The e-mails show that appointment of an emergency manager and consideration of Orr as Snyder’s “top candidate” was planned in advance of March 12, when state officials heard the Detroit City Council’s appeal of Snyder’s March 1 finding that a financial emergency existed.

On March 7, Baird e-mailed loan board members Dillon, John Nixon and Steve Arwood, saying, “I am advised you will be convening ... for the purpose of acting on the potential recommendation of an Emergency Manager for Detroit.” Baird said the meeting was tentatively scheduled for March 14, though the public meeting was ultimately held March 15.

“On Tuesday, March 12, I will provide you with the EFM candidate’s biographic information and facilitate one on one conference calls between you and the candidate where you will be able to ask questions about his background and his views on Detroit,” Baird said in the e-mail.

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“It will be necessary to keep his identify private until the Governor announces the recommendation.” He added: “We are advised that they need to be individual calls vs. one call with all three of you.”

Herschel Fink, an attorney for the Free Press, said the phone calls would have violated the Open Meetings Act, had they occurred.

Fink argued the case of Booth Newspapers v. the U-M Board of Regents before the Michigan Supreme Court in 1993. He said that what Baird proposed is similar to a “round robin” method the U-M board used to select a president, which the court ruled violated the Open Meetings Act.

Stephen Schultz, an Okemos attorney who advises local governments, disagreed.

“Open Meetings Act issues like this are very fact-specific,” Schultz said. “Individual members of public bodies are free to gather facts, as long as they don’t deliberate, or decide.”

Davis said he doesn’t believe he received all the e-mails that were exchanged and he wants the contempt hearing to go ahead. For example, he said, he hasn’t received any e-mails sent or received by Orr, who was a Washington, D.C., attorney before coming to Detroit.

Davis, who is under federal indictment for allegedly stealing from Highland Park Schools as a board member, said the e-mails demonstrate the need for Orr to testify about what contact he had with Snyder and board members.

The loan board is solely responsible for the appointment of an emergency manager, and Snyder should not have been involved, Davis said.

Dillon e-mailed loan board members March 12, sending information about Orr and asking them to give him “due consideration.”

“But as you know, the ultimate decision rests with this board,” Dillon said. “If members would like to put forth another individual for consideration, please feel free to do so.”

Dillon also cautioned the board members that “deliberation on any candidate needs to occur in an open meeting.”